Menominee tribe prepares for vote on legalizing marijuana

Still burning from the January rejection of its long-sought Kenosha casino, leaders of the Menominee tribe will find out this week whether tribal members want to tap a new vice to help it find economic bliss — growing and selling marijuana.

The approximately 9,000 members will vote Wednesday and Thursday in a two-question advisory referendum asking whether the Menominee should legalize marijuana on their reservation for medical and/or recreational use. If either question is approved, tribal legislators would begin the process of writing ordinances to legalize marijuana on the reservation, located near Shawano, said Gary Besaw, tribal chairman.

The Menominee would become the third tribe in the state whose membership approved some form of marijuana legalization in a referendum.

"We're very poor and do not have the luxury of turning our back on any potential revenue sources," said Besaw, who was a driving force in his tribe's bid to build an off-reservation casino in Kenosha. Gov. Scott Walker rejected the casino in February. "Because he denied the casino, the tribe still has need for a revenue source."

The Menominee and tribes throughout the state and nation have been buzzing about the possibility of growing and selling marijuana since December, when the U.S. Department of Justice released a memo telling federal prosecutors not to prevent tribes from growing or selling pot on their reservations — even in states such as Wisconsin where it is illegal.

In Wisconsin, the Menominee are seen as having the best opportunity to take advantage of the Justice Department position because they enjoy a legal status different from the state's other 10 tribes.

The Menominee tribe — which had its tribal status restored in the early 1970s — is the only tribe in the state that is a non-Public Law 280 tribe. That means the federal government enforces the laws on its reservation. Local and state authorities have jurisdiction for crimes committed on the state's other reservations.

"The Menominee is always the exception because we don't have any jurisdiction" on the reservation, state Attorney General Brad Schimel said Friday.

Schimel said he has spoken to leaders of several tribal governments about the impact of the Justice Department memo. Schimel said he has provided tribal leaders with his interpretation of the memo and the law, though he has not told the tribes what to do.

"These are sovereign nations and they have treaty rights," Schimel said.

Still, he said, the memo does not mean that Wisconsin tribes can become weed dealers.

"We haven't given the green light to anybody and it's not clear that we will give the green light to anybody," Schimel said.

In fact, Schimel said, if any of the tribes where the state has law enforcement authority began growing or selling marijuana on their reservation, his reaction would be the same as if the illegal act occurred on non-Indian land.

"We would work to shut it down," Schimel said. "We're not going to sit back and let it happen."

Other tribes study issue

Despite, the attorney general's tough talk, at least three Chippewa tribes — the Sokaogon (Mole Lake), Red Cliff and St. Croix — are investigating the possibility of legalizing some form of marijuana on their reservations.

"We have to look at it both socially and economically," St. Croix spokesman Michael Decorah said.

Mole Lake and Red Cliff members have approved legalization of medical marijuana on their reservations in tribal referendums. Both tribes say it will be a while before they move any marijuana product.

"The tribe recognizes there are many complexities and potential outcomes pertaining to the legalization of marijuana, none of which are clear at this time," Brandon Thoms, a Red Cliff spokesman, said in a Friday email.

Chris McGeshick, Mole Lake chairman, said his tribe is looking into making cannabidiol, a marijuana derivative used to treat children with seizures and other medical issues. The state legalized the marijuana byproduct last year. Cannabidiol does not make the user high.

Some tribal leaders have argued that when the state legalized cannabidiol, it opened the door for tribes to grow and sell all marijuana — just as the approval of the state lottery resulted in tribes being permitted in the 1990s to legally own and operate casinos.

Schimel agreed it is an open legal question. "The answer is unknown right now," he said. "My position is I don't think so."

McGeshick said his tribe isn't interested in selling marijuana for medical or recreational use and is only looking into the legal, social and the business aspects of producing cannabidiol.

Still, he said, the tribe has a long road ahead before it produces the first drop of the oil.

"This is not something that happens overnight," McGeshick said, explaining the tribe will have to study substance abuse issues as well as business issues.

"That is part of the business planning," McGeshick said. "If there is substance abuse, how do we provide counseling, what if there are side effects — you don't want to end up getting sued like the cigarette companies."

Permit would be needed

Even the Menominee are a long way from allowing a joint to be smoked legally on their reservation.

The marijuana would be sold only on the reservation to people over age 21 who obtain a "Marijuana Purchase Permit" from the tribe, the tribe states. People who purchase marijuana for medical purposes would need a prescription or authorization from a medical provider.

Besaw, the tribal chairman, said the tribe still needs to determine whether it could sell marijuana to non-Indians who visit the reservation.

Only small amounts of marijuana would be sold— "perhaps as little as 2.5 grams per day," the equivalent of about four to five marijuana cigarettes, tribal documents state.

It could not be smoked in public, the tribe said. Rather, it could used in private residences or "on the premises of a business that specifically allows for such use," the tribe said.

Coincidentally, the Flandreau Santee Sioux Tribe in South Dakota is planning to build a 15,000-square-foot recreational marijuana consumption center to be located near its tribal casino, according to media reports describing the project.

Gregory Haanstad, acting U.S. attorney for the Eastern District of Wisconsin, declined to say whether federal authorities would look the other way if the Menominee legalized and sold marijuana.

Marijuana "is still illegal," he said, noting the Justice Department memo simply "provides guidance on how we should allocate our limited resources and what type of marijuana cases we should pursue."

Among the enforcement priorities listed in the Justice Department memo is preventing the transporting of marijuana to states such as Wisconsin where the drug remains illegal.

Schimel weighs in

Schimel said he would ensure that state authorities worked to keep the marijuana on the reservation.

"I do not intend to sit back ... and have people drive off the reservation with marijuana," Schimel said.

Other enforcement priorities in the memo include preventing the drug from being sold to minors and preventing the profits from being used by a criminal enterprise.

Timothy Purdon, the former U.S. attorney for North Dakota who is now in private practice in Minneapolis, said that since because marijuana is illegal in Wisconsin, the Menominee tribe would have to show federal authorities it will keep its product on the reservation.

"They'll need a regulatory scheme ... to ensure people will only buy it and consume it on the tribe's premises," Purdon said.

Even with strong rules, Purdon said, it will be years before state, federal and tribal governments figure out exactly how to handle pot sales in Indian country.

"There are going to be some interesting debates and court fights over the next five, 10 years," he said. "We're still at the beginning of the beginning."

About Cary Spivak

Cary Spivak does investigative business projects and covers the casino industry. He has won numerous state and national awards.